Abstract

The dichotomous concepts of protection and punishment is cast within the mould of state sovereignty and power. For citizens, the institutionalized framework of both protection and punishment that they are subjected to, is by default determined by the sovereign authority and power of respective nation-states. Their right to be protected by the state is equally juxtaposed to the monopoly of the state to punish them, if they digress from the established ‘rule of law’. Punishment here, theoretically can be seen justified as retributive- that is to impose a deserved reciprocally sanctioned action or as preventive- so as to create a deterrence against such digressions (Cahill, 2010). Hence for citizens, while protection is embedded in their rights of citizenship, punishment signifies right of the sovereign, both though with qualifiers and conditions. For non-citizens like refugees and stateless, who sustain their “bare life” in the host-state, the dichotomy of protection and punishment manifests differently than for citizens. The causative factors that necessitated their exclusion and displacement from their country of origin more than often was for not fulfilling the criteria for inclusion in that state. Couched in the larger ambit of humanitarian protection, their subjectivity is reduced to that of ‘humans’ that mandate ‘protection’. Here the limited protection accorded to them signify only their “residual rights as human” (Mamdani, 2010: 54) and not the full-fledged protection guaranteed to the citizen by virtue of their citizenship rights. Punishment for them is at once both metaphorical and literal. Refugees and such forced migrants are segregated from the host population and live in make-shift camps in deplorable conditions, such that the protection accorded to them on humanitarian grounds transmute to a sort of punishment for being the excluded ‘other’. The crossing of geographical boundaries not just creates categories such as ‘us’ and ‘other’, but also have seen increasingly led to “criminology of mobility” (Aas and Bosworth, 2013 :9 ). Regulation and restriction of mobility hence produces novel forms of illegality and criminalization, apart from turning punishment and criminal justice structure as important apparatuses “guarding the gates of membership” (ibid.). The role of criminal law and policing has been to preserve the internal security, to establish the sovereign’s supremacy and the moral order of the society, in short to create a well- ordered and disciplined society (Foucault 1977; Simon 2007). The paper intends to look at the binary of punishment and protection of refugees from the view point of sovereign power of the state.

References

1. Cahill, Michael T. “Punishment Pluralism.” In Retributivism: Essays on Theory and Policy, edited by Mark D. White. Oxford University Press, Forthcoming, Brooklyn Law School, Legal Studies Paper no. 215, 2010. https://ssrn.com/abstract=1705682.
2. Mamdani, Mahmood. “Responsibility to Protect or Right to Punish?” Journal of Intervention and Statebuilding 4, no. 1 (March 2010): 53-67. https://doi.org/10.1080/17502970903541721.
3. Ali Mohammadi on his life in the Moria refugee camp, his fear of being deported, and the pandemic situation.
https://www.rosalux.de/en/news/id/45082?cHash=ef679b1c893388e8bef5de9e97954a37&fbclid=IwAR2D21rpmiMJLVKVz-1cI43dQeiZEHO60aXc1OC2Hvdcf9Vl-_0Bb20z_gA.

Draft Theme Paper… CLICK HERE

Abstract

Mobility and migration of people have been enduring phenomena, and visibly driven by a combination of economic, political, and demographic factors. We are aware that the phenomenon of migration and related experiences are quite often contentious. Although it is largely agreed upon that migrants are crucial to the economic development of nations/regions, the continuous ‘othering’ of migrants by those who claim themselves as ‘natives’ complicate the migrants’ lives. For decades, migrants’ social rights and access to welfare have been critical issues within the global north and south; however, with the latest spurt of ‘migration crisis’, society and polity across the globe seem to have been very unsettled. Though welfare provisioning in the global south is relatively minimal, the figure of migrant is still positioned as a burden on the state and its welfare and fuels societal anxiety. The rhetoric and contention of ‘burden’ increase manifold when one engages with the stateless and those migrants who encounter overt hostility.

The conflict that underlies the experiences of migrants and refugees, who are essentially arrivals in another place, shapes and cuts through multiple dimensions of their relationships with those around them. Their legal status notwithstanding, they are treated as, and most often remain outsiders in several ways, with social rights and social citizenship being restricted. Entrenched in conditions of poverty, their conditions are dependent on social welfare and protection; they attain visibility as subjects of welfare provisioning and are directly impacted by social policies, schemes, and services.

The COVID-19 pandemic has triggered a global health emergency of unprecedented proportions. It has also disrupted the normal functioning of the social, economic, and political life of people across the globe, creating particularly harsh conditions for migrants (Chamie, 2020). The World Bank reported that the pandemic and the shutdown of prosperous economies on which many developing countries depend “could push as many as 60 million people into extreme poverty.” With the spread of the epidemic across the globe and its consequences on health and livelihood, the concern for public health and challenges for employment and livelihoods have become areas of vital engagement.

The spectacle of migrants on the road, on bicycles, struggling to board the train and undertaking all kinds of difficult journeys became the defining image of the pandemic in India. Amidst the chaos, confusion, uncertainty, and fear spreading across the country because of COVID-19, the migrants have been trapped in a highly tenuous situation. Due to the lockdown, they became unemployed, which resulted in a shortage of food and other essentials required to survive in the city. Most migrant labours have a similar story. Social Distancing and isolation are not an option for those residing in informal settlements and camps, with access to water and sanitation remaining a serious challenge (Chamie 2020:236). Amid the raging pandemic, the crisis intensified with instances such as aggressive detention of Rohingyas in Jammu, their camps getting destroyed in a fire in Delhi and rendering them homeless. Access to public goods and social provisioning for the refugees and urban migrants remains at the periphery of the policy agenda; the ongoing COVID-19 pandemic has exposed the crisis for the larger public. The value of care and protection of the migrant labour instantly boils down to the minimalist rescue and relief through makeshift shelter, food and other bare necessities of life.

Viewing the current pandemic as a unique or unpredictable occurrence shifts responsibility and accountability from a host of institutional actors to those who were unable to protect themselves from the direct and indirect effects of the pandemic and incurred heavy losses. Situating the pandemic within the well-established knowledge, experiences and policy debates would enable us to understand how the novel coronavirus rapidly transformed into a humanitarian crisis in India.

Socio-economic and political disenfranchisement of migrants can be examined through the nexus of poverty, vulnerability, nature of work and social status of the migrant workers. How are ideas of hygiene, sanitisation, public health and community responsibilisation, and policies and practices of governing informal migrant workers (ideas and limits of compensation, enumeration, and service provisioning) and their basic needs understood and responded to? (Vyas & Jha, 2021) Migrants tend to undertake the riskiest, lowest paying and most hazardous jobs with over-representation of Dalits, Adivasis and other lower caste populations. Away from their source area, these migrants are often denied social provisioning that is officially tied with their identity at the source area. One of the complicated issues that the migration crisis exposed was the absence of precise information and data about their number, spread, scale, and nature of work due to their being unenumerated. Simultaneously, the neoliberal push through labour codes brought newer insecurity and complexities for migrants in the urban informal economy.

Another significant dimension in the life and work of the migrant is evident in the discourse on individual and collective charity, support and solidarity through Non Governmental Organisations (NGOs)/Community Based Organisations (CBOs) and other collectives. We are aware that civil society in general and NGOs/CBOs have been at the receiving end of stringent government regulations in the last decade and their resources have been dried up over the years. Yet, due to their close connection and sense of responsiveness, they needed to respond to the situation immediately, and did so with resources that they had and could mobilise. Additionally, the Community, as neighbourhood, emerged as a repository of agency of residents and has been roped into partner with state and NGOs creating multi-stakeholder relationships of welfare provisioning, during the pandemic and otherwise.

We need to engage with political, legal and social dynamics around the bare provisioning and (im)possibilities of social protection for the migrant workforce, the issue of their right to the city, in order to address the adhocism that determines their treatment by the state, and contribute to bringing the migrant centre stage in political and policy discourse. In this module, we shall engage with three themes: 1) A situation analysis of international and internal migrants vis-à-vis access to social protection and welfare services; 2) The history and context of the pandemic and its implications for accessing social provisioning through analysis of policy and practices regarding populations, living spaces, occupational groups, and; 3) State-Civil Society interface and/or complexities in facilitating access to food, health services and education for migrant populations.

Draft Theme Paper… CLICK HERE

Abstract

1. While documenting the footloose people in South Asia, one scholar observed: “In the last six decades, South Asia has witnessed massive interstate migrations and refugee movements as no other region of the world has. About 50 million people have been involved in the process. It is not easy to put them into categories” (Partha S. Ghosh, Migrants, Refugees and the Stateless in South Asia, Sage Publications India Pvt. Ltd., 2016).

2. Though the terms, “refugee”, “asylum-seeker” and “migrant”, are used interchangeably to describe people who are on the move, the Amnesty International cautioned that it is important to distinguish between the “refugee” and the cross-border “migrant” from the legal perspective (See “Refugees, Asylum-seekers and Migrants”, www.amnesty.org). Similarly, cross-border migration and internal migration within a country have different economic, social, political and legal implications. Moreover, the distinction made between categories of “legal” and “illegal” immigrants in the Statist discourse on international migration have important bearings on the life worlds of the immigrants in a country. Very recently, in the book The Postcolonial Age of Migration (2020) it has been argued: “This is the postcolonial moment in the history of migration, which appears at the juncture when neoliberal transformation and postcolonial politics and economy intersect”. And further, “The unruly subject of contemporary capitalism called the migrant and the refugee is the unsettling, quintessential postcolonial figure who has to be bound by market norms, laws of immigration, policies of stay or settlement and humanitarianism, and administrative-police measures, but who escapes all these measures aimed at stabilising the situation…the institutional framework of global governance violates claims of the migrants to justice”. The same book also emphasizes that the “agency of the migrants” becomes crucial for an agenda of hospitality and cosmopolitanism. The issue of agency is important in any discussion of subject formation.

3. The present module broadly aims at interrogating the received categories of migrants and refugees and see how the migrants and refugees become subjects of economy and politics in varying but in interrelated ways. The module will discuss the questions: what is the dynamics of subject formation here? In what way the refugees and migrants become subjects while being subjected to economy and the ruling order of politics? What do the present experiences of forced population movements tell us in this regard? Connected to this will be the inquiry: In what way the dialectic of visibility and invisibility reflect on the received categories of the “refugee” and the “migrant”?

4. We can notice a double paradox in this regard: (a) Consider the first paradox: The refugee is a legal figure, who escapes violence and threat of violence, seeks asylum, and gets asylum. Some people say, the asylum seeker is not a refugee till s/he gets asylum. In any case the refugee is a legal figure – a subject of international (and national) law. If the person has not arrived legally, the person is an immigrant, most probably an illegal immigrant, whom the state may or may not give protection. The state can guard its borders, and erect cordons, walls, check posts, and institute various modes of surveillance to keep the unauthorised entrants out. Thus, if one enters without due leave one is an illegal immigrant or waiting to become a subject for protection of law. At most the state may not forcibly return this “outsider”. In any case, unless (or even if) apprehended and put in a camp somewhere by the state, the person remains beyond the pale of law. The only solace may be that the person will not be killed, though as we have seen in Mediterranean crossings and elsewhere many may in the process die. In such scenario the immigrant is a figure of illegality. Now as distinct from this scenario, the migrant, often distinguished from a refugee or an immigrant with the possibility of becoming a refugee, is usually thought of as a legal person seeking employment or already in employment under conditions permitted by municipal laws and in some cases global labour conventions. Yet as we have noted that the immigrant may be an illegal figure. In short, the apparently honest distinction between the refugee and the migrant is troubled by the shadows of law, legality, and illegality. The figure of the refugee and the migrant – often in public mind a composite one – is thus a paradoxical one. No wonder the two global compacts tries to distinguish the two groups (refugees and migrants in the respective terms of “protection and development” and “safe and orderly migration”) and ends up by complicating the question even further. (b) Now the second paradox: Whatever may be the legal situation, most of the refugees and migrants are subsumed by the neoliberal economy as informal labour or semi-bonded labour even in formal production centres, farm labour, petty traders, and self-employed producers. They are valuable to their respective countries of origin as remittance sending persons. And, to the world as a whole, they are valuable as essential elements in the global value chains of various commodities that call for a global infrastructure economy and various forms of platform economy. In this way the refugee and the migrant becomes the subject of economy. The visibility of the refugee and the migrant is thus in the domain of economy. This visibility is however absent in politics. There, the asylum seeking individual and the job seeking individual – often the identities are mixed – are invisible. This composite figure of the refugee and migrant does not count in electoral political process, parliamentary political dynamics, and in the political thinking of the country where the migrant/refugee has sought protection and livelihood. Liberalism has no space for “outsiders” (outsiders count only as the pretext of racism and labour market management, in general as the object of nationalist politics), while neo-liberalism allows the outsider but only in the sphere of the market. The migrant/refugee actualises as a political subject only when s/he becomes visible in the time of a crisis: for instance, the Syrian War or the European migrant crisis of 2015 or the migrant crisis in India in 2020 during the nationwide lockdown in the wake of the Covid-19 pandemic. In short we have here a paradox of visibility/invisibility, which operates in the process of subject formation.

5. Clearly, the traditional narrative of a rights bearing individual does not work in this case. Perhaps we have in this way a resolution of Hannah Arendt’s problem, namely that the refugee/stateless is a person without the right to have rights, in other words without political individuality. We shall not be able to think of the refugee/migrant as a political figure – a right bearing subject. S/he is the permanent object of protection, or if you will, the permanent subject of humanitarianism. At the same time, s/he is the subject of economy.

6. Let us go back to the word, “crisis” in paragraph 4 (b). The question will be: How does the element of “crisis” as the “third factor” in this locked situation appear as the sword of time driving a wedge in the comfortable situation where the bourgeois society has disposable labour but does not have to endure labour’s presence in politics? That way the polity will have democracy, citizenship, and political equality, while the economy will continue to work as a machine creating precarious conditions on life. In other words, the refugee and the migrant will remain a spectral figure in this democratic age. Only in times of criss the paradoxes we have mentioned in this brief note will become evident.

Draft Theme Paper… CLICK HERE

Abstract

The world has been witnessing frequent mixed and massive flows of population in recent times, when refugees, asylum-seekers, and migrants on the move together can hardly be differentiated. The New York Declaration 2016, and its two Global Compacts, the Global Compact on Refugees (GCR) and the Global Compact on Safe, Orderly and Regular Migration (GCM), have raised expectations for better governance of international human migration by committing itself to securing the rights and protection of refugees and migrants in the context of human rights discourse and working toward sustainable development. But, this impressive initiative has largely been triggered by the European or Mediterranean ‘crisis’ of 2015, when many refugees and migrants perished in the sea. Like all other earlier attempts at the international level to formulate rules and norms for the governance of the people on the move, this effort also turned out to be predominantly influenced by developments in the Global North.

On the other hand, as a consequence of complex situations emerging from the movements of refugees, stateless people, and undocumented migrants across the borders of South Asia, are the international legal instruments capable of addressing the complexities relating to the movements of people in South Asia? Have we been been able to decolonize our thinking during the last seven decades? Rather, the critique of modernity in the Global South has largely been influenced by its subordination to and dependency on a Western-dominated world even after decolonization. The production of knowledge in the postcolonial societies of South Asia, therefore, has predominantly been subject to colonial blueprints and geopolitics. It is not surprising that, the most postcolonial accounts, like the colonial ones, tend to disregard the existence of other knowledges in connection to refugees and migrants. In this scenario, taking cue from the Kolkata Declaration, 2018, and we shall explore the genealogy of governance of migration in South Asia from the perspective of critical jurisprudence in the postcolonial, neoliberal times, and shall briefly examine the worth of a decolonial approach to governing human migration in South Asia, in particular, and the Global South, in general.

In this module we shall engage with the governance of migration in South Asia to dismantle recurring colonial frameworks of thinking in the field of migration and citizenship, and we shall, therefore, examine the practices of the postcolonial states in South Asia of expelling their traditional inhabitants to a world of unfreedom and precarity, when in these neoliberal times, suspicions about “unchosen” migrants are on the rise, along with the growing securitization of migration.

Draft Theme Paper… CLICK HERE

Abstract

Introduction

In a world of nation-states, it is ironical to see ‘stateless’ people. It is case of glaring omissions or contradiction at international level where several millions are denied citizenship or nationality. South Asia is riddled with such tedious challenges of statelessness. Globally at present there are around 80 million people displaced due to conflicts or due to situation of forced migration2. Statelessness is a profound violation of human rights of an individual and remains to be one of the most pressing humanitarian issues of the twenty-first century. Article 15 of the Universal Declaration of Human Rights clearly states that (1) “Everyone has the right to a nationality” and that (2) “No one shall be arbitrarily deprived of his nationality3.” Despite this guarantee, people in all parts of the world face the prospect of living without the nationality/ citizenship and its foreseen rights hence, lacks the security and protection under the state that usually citizens takes for granted.

At the outset, it is very important to distinguish between ‘statelessness’ and ‘refugee hood’ in order to avoid its overlap and apparent confusion it may cause. Well stateless is the one without any nationality or citizenship by law4, whereas the refugee is the one who is fleeing to another country due to ‘well-founded fear of persecution’ 5 . South Asia is riddled with culture, history, colonial experience, migration, state succession, citizenship, birth registration, etc. with root causes of statelessness. As the Universal Declaration of Human Rights makes clear, everyone has a right to a nationality. Without nationality, individuals face an existence characterised by insecurity and marginalisation. Stateless people are amongst the most vulnerable in the world, often denied enjoyment of rights such as equality before the law, the right to work, education or healthcare6. To use the access to justice (A2J) framework, everyone needs justice, but there are several barriers and impediments. Stateless and Refugees are the most marginalised and vulnerable groups. The following International laws and conventions are relevant here:

Convention on Status of Refugees, 1951 & 1967 Protocol

• Convention on Statelessness, 1954 & Reduction 1961
• UDHR- Articles-14 & 15: Right to seek Asylum & Non deprivation of nationality, respectively
• ICCPR 7 – Articles 1 & 27: Right to self-determination & treatment of minorities
• ICESCR8- Article 2 (3) economic rights to non-nationals
• SDG9- Goal 16 talks about Promoting Just, Peaceful and Inclusive Societies

Article 1 of the 1954 Convention relating to the Status of Stateless Persons (1954 Convention) defines a ‘stateless person’ as someone “not considered as a national by any state under the operation of its law.” Statelessness arises in a variety of contexts. It occurs in migratory situations, for example, among some expatriates who lose or are deprived of their nationality without having acquired the nationality of a country of habitual residence. Most stateless persons, however, have never crossed borders and find themselves in their “own country”. Their predicament exists in situ, that is in the country of their long-term residence, in many cases the country of their birth. For these individuals, statelessness is often the result of problems in the framing and implementation of nationality laws10. The Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly of the United Nations has affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination. The 1954 Convention’s most significant contribution to international law is its definition of a “stateless person” as someone “who is not considered as a national by any State under operation of its law.” For those who qualify as stateless persons, the Convention provides important minimum standards of treatment. It requires that stateless persons have the same rights as citizens with respect to freedom of religion and education of their children. For a number of other rights, such as the right of association, the right to employment and to housing, it provides that stateless persons are to enjoy, at a minimum, the same treatment as other non-nationals.

To overcome the profound vulnerability that affects people who are stateless and to help resolve the practical problems they face in their everyday lives, the Convention upholds the right to freedom of movement for stateless persons lawfully on the territory, and requires States to provide them with identity papers and travel documents. The Convention also prohibits the expulsion of stateless persons who are lawfully on the territory of a State Party.

Because protection as a stateless person is not a substitute for possession of a nationality, the Convention requires that States facilitate the assimilation and naturalization of stateless persons. Like the 1951 Convention relating to the Status of Refugees, the 1954 Convention explicitly excludes individuals when there are serious reasons for considering that they have committed a crime against peace, a war crime, a crime against humanity, or a serious non- political crime.

Why is Nationality Important?

Recognition of nationality serves as a key to a host of other rights, such as education, health care, employment, and equality before the law, people without citizenship – those who are ‘stateless’ – are some of the most vulnerable in the world. That is why the inclusion of the right to nationality in Article 15 of the UDHR is pertinent component. UDHR as a whole was motivated by the impulse to respond to the atrocities committed during the Second World War, among them mass denationalisations and huge population movements. Hundreds of thousands of Jews who survived the Nazi-perpetrated genocide fled their home countries, while millions of ethnic Germans were expelled from eastern European states, and millions of Poles, Ukrainians, Byelorussians and other minority populations of the Soviet Union either were forcibly expelled or fled for their safety during aftermath of Soviet disintegration.

Types of Statelessness

There are two types of statelessness: (i) De jure Stateless and (ii) De facto Stateless. The 1954 Convention establishes the universal definition of a “stateless person” in its Article 1(1). Persons who fall within the scope of Article 1(1) are sometimes referred to as “de jure” stateless persons even though that term is not used in the Convention itself. By contrast, reference is made in the Final Act of the 1961 Convention to “de facto” stateless persons and there is an implicit reference in the Final Act of the 1954 Convention. Unlike the term “stateless person” as defined in Article 1(1), the term de facto statelessness is not defined in any international instrument and there is no treaty regime specific to this category of persons (the reference in the Final Act of the 1961 Convention being limited and non-binding in nature). Care must be taken that those who qualify as “stateless persons” under Article 1(1) of the 1954 Convention are recognised as such and not mistakenly referred to as de facto stateless persons as otherwise they may fail to receive the protection guaranteed under the 1954 Convention11. There is not only a lack of systematic attention given to collecting reliable statistics but also a lack of consensus on whom to include when counting stateless people. There is general agreement that people who are de jure (legally) stateless – those who are not considered as nationals by any state under its laws – should be counted. However, there are many millions of people who have not been formally denied or deprived of nationality but who lack the ability to prove their nationality or, despite documentation, are denied access to many human rights that other citizens enjoy. These people may be de facto stateless – that is, stateless in practice, if not in law – or cannot rely on the state of which they are citizens for protection12.

Causes for Statelessness

It may result from various circumstances/ reasons. States may simply cease to exist while individuals fail to get citizenship in their successor states (as in the case of USSR and Yugoslavia). Political considerations may dictate changes in the way that citizenship laws are applied. An ethnic minority may be persecuted or being denied citizenship; or a group may live in frontier areas and frequently cross borders, causing states on both sides of the border to deny them citizenship as in the case of Bhils. There are individuals who become stateless due to personal circumstances, rather than persecution of a group to which they belong. Statelessness can arise from legal differences between countries, people renouncing one nationality without having acquired another or even, more simply, from failure to register the birth of a child. Added to this is a potential new category: small islands which, condemned by a changing climate to be swallowed by the sea, will see their entire populations become stateless. India’s neighbour, Maldives faces this challenge vis-à-vis climate change.

Two Types of Citizenship

Indeed, the two most commonly employed principles for granting citizenship operate at the moment of birth: in legal terminology jus soli and jus sanguinis, the ‘law of the soil’ and the ‘law of blood’ principles, respectively. One of the main reasons people are denied or deprived of nationality, and thus rendered stateless, is racial or ethnic discrimination.

Types of Statelessness in South Asia/ India

Despite advances in international law regarding the protection of stateless persons, India has been reluctant to incorporate them into national legislation. Thus, it is not surprising that there is a gap in the literature and data regarding statelessness in India13.

(i) Decolonisation led to partition of British India and creation of two sovereign States: India and Pakistan. This caused a large scale mass migration of approximately 12 to 14 million people who became displaced on either side.
(ii) One such specific category as part of partition refugees are still called as ‘West Pakistan Refugees’ in Jammu and Kashmir, they are unable to get domicile status due to special laws followed in J &K vis-à-vis article 35A of Indian Constitution.
(iii) Decolonisation also affected the legal status of many Indian origin people in Sri Lanka during colonial times as plantation workers and were rendered stateless upon Independence in 1948.
(iv) Amongst them a section of them are in India named as Uphill Country Tamils among the Sri Lankan Refugees in India since 1983.
(v) Currently in the State of Assam, several lakhs of people are being rendered as stateless or ‘D’ voters (euphemism for doubtful voters) through the new census registration scrutiny. In addition the recent National Register Census has announced nearly 40 lakh people do not qualify to be citizens, in other words they are stateless people.
(vi) The Bhils are category of nomadic migratory tribal people trapped between borders of India and Pakistan.
(vii) Chakmas and Hejongs also face discrimination and are being in the state of statelessness.
(viii) People living in Indo- Bangladesh borders prior to Land Boundary Agreement (LBA) signed in 2015, lived in statelessness conditions and continue to face difficulties even after getting citizenship on papers.
(ix) Added to this is a potential new category of NRC and CAA related victims.

While India has a long-standing history of hosting a large number of refugees and stateless persons, it does not legally recognise them through legal framework, which creates problems of integration.

Gender Discrimination

Gender discrimination is also a crucial factor in creating and perpetuating statelessness. Many countries around the world still do not have gender-neutral citizenship laws; in the worst cases, women lose their citizenship upon marriage to foreigners, and are unable to pass on their citizenship to their children. In Swaziland, the constitution adopted in 2005 stipulates that a child born after the constitution came into force is a citizen only if his or her father is a citizen. In Africa alone, over 20 countries still deny women the right to pass on nationality to a foreign spouse. In Nepal the women cannot transfer the citizenship to her children directly. There are some positive developments too, for example, in Botswana in the early 1990s a challenge to the constitutionality of the country’s Citizenship Act on the ground that it discriminated on the basis of gender led to the Act being amended. “Women and men should enjoy equal rights to transmit nationality to their children”, according to CEDAW, Article 9 and CRC, Articles 2 & 7.

COVID Context

Now the on-going COVID-19 has caused tremendous challenge to the migrant labour, loss of livelihoods and pressure on the existing stateless population. The covid pandemic has posed more questions on statelessness issue, which we can address and discuss as follows:

(i) how new borders are formed due to pandemic;
(ii) are the migrant labours are treated as stateless population?;
(iii) How do we govern the stateless people in present covid context; and
(iv) Are they kept in perpetual statelessness by the authorities to exploit their labour which is a disenfranchised labour
(v) How does the inter-sectionality of gender, caste and religious fault lines operate/ function;
(vi) How do we look at international movements like #IBelong campaign by UNHCR and finally
(vii) How to map the stateless people and bring them under advocacy and solutions.

Notes

1 According to UNHCR Status report, 2019
2 According to Universal Declaration of Human Rights, 1948
3 According to Statelessness Convention, 1954
4 According to Convention on Status of Refugees, 1951
5 Handbook on Protection of Stateless Persons, UNHCR, Geneva, 2014
6 International Covenant on Civil and Political Rights, 1966
7 International Covenant on Economic, Social and Cultural Rights, 1966
8 Sustainable Development Goals, 2015-30
9 Handbook on Protection of Stateless Persons, UNHCR, Geneva, 2014.
10 Handbook on Protection of Stateless Persons, UNHCR, Geneva, 2014.
11 Indira Goris, Julia Harrington and Sebastian Köhn, Statelessness: what it is and why it matters? Forced Migration Review, Vol.32, April 2009.
12 Asha Bangar, Statelessness in India, Statelessness Working Paper Series No. 2017/02, Institute on Statelessness and Inclusion, June 2017.

Draft Theme Paper… CLICK HERE

Abstract
1. Never before in our recent past history has life per se – regardless of class, income, ethnicity, race, identity and so forth – acquired so much of importance as it has now. While the ongoing pandemic calls for protection of life per se, most of our responses have been highly differential, if not discriminatory. On the one hand, these differential responses by all accounts take on a racist character. Migrants and refugees, needless to say, surface at the wrong of the spectrum of responses and become easy targets of violence and xenophobia. The pandemic has not only revived the pre-existing differences, but introduced newer ones. On the other hand, the differences have made it imperative on the part of States and human societies to decide on the ‘value’ or ‘non-value’ of life – on who must die so that others might live. Societies are not known to have cared for any and every life.

2. The worldwide pandemic marks the high point of coincidence between the presently pursued neoliberal policies with a neo-Malthusian turn. In the last chapter of his book published in 1798, Malthus argued that the surplus population that the nature is unable to feed because of the ever-increasing pressure on her resources is to be considered as dispensable. They do not deserve to live and must die as the nature takes ‘positive checks’ (i.e. natural disasters, calamities, accidents, epidemics and pandemics etc) in order to eliminate them. Remember his axiom – ‘moral evil is the road to moral excellence’. ‘Their’ disease and death (of the migrants, refugees and others), in other words, are subordinated to the ‘demands of our life’.

3. Contrary to the neo-Malthusian ethic, we have examples of practices of care and solidarity that not only are issued from the sheer biopolitical necessity of mutual survival but make life possible for those who are otherwise condemned to die under extreme neoliberal conditions. Never before in human history has ‘public’ or ‘common good’ become so much important as it has in the context of the raging pandemic.

4. Recovering care and solidarity from the appropriations by neoliberal power is by no means easy. Such terms as ‘trust’, ‘social capital’, ‘network’, ‘togetherness’ and ‘responsibility’ have already become the new buzzwords of neoliberal interventions in Migration and Refugee Studies. On the other hand, it only implies that ‘their’ practices must be negotiated under conditions of what Derrida would have called ‘performative powerlessness’.

5. The final part discusses three albeit overlapping discursive practices of care and solidarity beyond the State domain as evident in Modern Indian Social and Political Thought: Swami Vivekananda’s idea of service towards the plague-affected victims, Tagore’s project of ‘societal kingship’ (samaj rajtantra) and Gandhi’s fight against stigmatization of lepers.

6. Social governance of the pandemic, in other words, gives unto itself ethics that are unique to them. Experiences of care and solidarity particularly in Kerala, West Bengal and the states of India’s Northeast speak of a diversity of models underlining different ethical principles that help ‘destructure’ the neoliberal ethic.

Draft Theme Paper… CLICK HERE